Search This Blog

Monday, December 14, 2015

Is The Bill Of Rights A Failure?

James Madison

I have been thinking about individual and group rights. A lot of people have been.
So I read a good deal, and sometimes I come across an article that crystallizes everything. Such is the case with the article below:

The Imaginative Conservative
Why the Bill of Rights Is a Failure
by Bruce Frohnen
...The crybullies lately rampaging around Yale, the University of Missouri, and other campuses have shown how well that strategy works. Bewailing “microaggressions” that make them feel bad, increasing numbers of college students are dismissing civility, fairness, and especially free speech rights in the name of their “right” to emotional comfort. The Vice President of the University of Missouri student government, one Brenda Smith-Lezama, even said in a television interview, “I personally am tired of hearing that first amendment rights protect students when they are creating a hostile and unsafe learning environment for myself and for other students here.” The astonishing ignorance, selfishness, and contempt for American constitutional values packed into this one statement constitute proof that our constitutional rights are no longer valued or even vaguely understood by a wide swath of American college students.

How did this happen? It is too easy to stop at pointing out Ms. Smith-Lezama’s clear limitations. She is parroting the radical agitprop fed to her by the radical professors and community organizers infesting our universities. But her cynical mentors did not come from nowhere. They and their ideology are products of the limp liberalism of their own upbringing, of a liberalism rooted more than anything in an ideology of individual rights...
Sorry about subjecting you to this. The writing is horrid. I have not gone deeply into the University of Missouri situation, so I do not know whom to sling mud at, but I have an extreme aversion to such argumenta ad homines - or ad feminas, as the case may be here - using ghastly constructions such as "crybullies".
... The liberal insistence that rights are abstract universal principles with no basis in or proper limits set by either history or their own internal logic was founded on an obsession with individual autonomy fated from the start to end in political cannibalism...

Exactly here we run into the crux of many problems.
For the Declaration of Independence sets forth that mankind is endowed by its Creator with "certain inalienable rights...", and I think we could translate that on the fly as "abstract universal principle".

However, the Constitution provides a Bill of Rights composed of rights which seem to be a bit more specific and particular, and much less general and abstract; for example, the Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

That "right" is very specific as to "soldier", not "representative", and "house", not "church" nor "railroad station".

I can't agree with "political cannibalism", mainly because I do not know what it is.
... Lost in the relentless drive over many decades for infinite civil liberties rather than ordered liberty has been the Constitution itself. The purpose of a Constitution is not merely to protect the rights of dissenters. Its more essential purpose is to set out a form of government. A free constitutional government provides its people with the procedures necessary to enact laws rooted in the consent of the governed and to chain the governors themselves to the law, including the Constitution. A Constitution cannot provide absolute protection for individual rights for the simple reason that rights are not absolute. As freedom of speech by nature ends where defamation, obscenity, and fraud begin, so all other rights have natural endpoints beyond which they, too, constitute abuses...
This section denies the assertion in the Declaration of Independence that some rights are absolute.
... Thus we are left with no substantial protections for our rights on our campuses, in our business world, or in our dealings with governments. Crybullies, Mozilla, or petty administrators can silence us, fire us, fine us, or even send us to re-education camp (“sensitivity training”) for expressing politically incorrect views or refusing to participate in politically correct rituals...

It is a tough world as here depicted, but no tougher than that of Dalton Trumbo and the other black-listed writers who could not find work in the 1950s. Everything depends on whom the bull is goring.
... Unfortunately, the Bill of Rights has failed—or rather been made to fail—in its primary purpose. Those claiming to free the individual pretended that these rights are something absolute which the federal government must protect at all costs, and that any laws (even the Constitution itself) standing in the way of those unattainable absolutes are by nature illegitimate. In this way they delegitimized our frame of government, our fundamental institutions, and law itself. Those who claimed to be freeing the individual in effect left him alone, with no defenses, to face the mob. We now have proof of how well that works out. As Russell Kirk pointed out many times, order is the first need of all. And order, if it is not to come from the barrel of a gun, must come from law. For us that law once was rooted in our constitutional frame of government. Without that frame of government, without respect for the legitimacy and integrity—whatever the occasional abuses—of our constitutional order, all will be chaos and the pursuit of unjust power...
Order is indeed the first need of all.
What kind of order? Is the order itself tyrranical?
Order may very well ignore the Constitution, and the argument seems to be what is the nature of any "inalienable right", since we have the specific rights spelled out in the Bill of Rights...

When someone says "Black Lives Matter...", I would interpret this as meaning that Black folk are endowed by our Creator with certain inalienable rights, among which are Life, Liberty, and the Pursuit of Happiness.
I would not think that "Black Lives Matter..." might be being uttered in protest against soldiers being quartered in houses in the black neighborhood without the owners' consent.

We could enlarge the Bill of Rights, because tyranny, whether from the governments or from groups of protesters, never dies and evolves to keep pace with the times; witness the debate over whether I have the right that my private telephone conversations not be available to the NSA.

If the Order is distempered, then there will be trouble, and the representatives of the Disorder will experience unpleasantness if democracy prevails, just as the protesters will be hounded and injured if authoritarianism prevails.

The mere fact that there is a Bill of Rights makes it abundantly clear that it is insufficient to assert that there are inalienable and absolute rights, because even the conservative writer of the above piece has forgotten that such absolutes do indeed exist!

 George Mason   Principal Author of the Virginia Bill of Rights


No comments: